Charter Litigation

• Author: Robert J. Sharpe, Kent Roach
• Pages: 112-128

112

Chapter 7

CHA RTER

LITIG ATION

Charter issues are decided in the ordinar y course of litigation.1 Any cit-

izen whose right s are affected i s entitled to raise a constitutiona l issue

in a civil proceeding or by way of defence to a crimin al pros ecution.

Canadian law follows the Anglo-American legal tradition and does not

assign particular responsibility to a specialized court for the adjudi-

cation of constitutional disputes. The court that h as jur isdiction over

the dispute has, by virtue of that jurisdiction, authority to decide the

constitutional issue.

This method of dealing with constitutional cases has important im-

plications for the manner in which constitutional issues are decided.

It means that Char ter is sues will almost always arise in a fact-specif‌ic

context and be decided in the course of a concrete dispute between

two partie s. The prima ry task of the court is to decide the c ase before

it, not to pronounce at large upon the constitution or its meaning. It

is an est ablished pract ice in Canadian law th at, if a judge can decide

a case without deal ing with a constitutional issue, he or she should

do so. Moreover, because proceedings in Canadian courts are strictly

adversarial, a judge w ill not ordinarily comment upon a constitutional

issue unless one is raised by the parties. Even if there is believed to be a

constitutional issue that may ari se on the facts, it would be unusual for

1 Both this c hapter and chapter 17 draw freely on a contr ibution to a collection

on Canadia n constitutional law publi shed in Italian: R.J. Shar pe, “Ordinamento

giudizi arrio e giustizi a costituzionale” in L’ordinamento costituzion ale del Cana-

da (Torino, G. Giappichelli Editore, 1997).

Charter Litigat ion 113

a judge to deal with t he issue if the pa rties do not raise it. It is for the

parties to the di spute to def‌ine the i ssues before t he court. Similarly,

the parties control the presentation of evidence and argument.

a. INterVeNtION BY the attOrNeY

GeNeraL aND pUBLIC-INtereSt GrOUpS

While c onstitution al ca ses general ly follow t he same procedural p ath as

oth er ca ses, there are so me imp orta nt exc eptio ns an d spec ial p roced ural

rules to ref‌lect the wide range of interests implicated and the importance

of any decision for the future. The f‌irst concern s the representation of

the publ ic and other inte rest s. A p art y who c hall enge s the c onst itut iona l

validity of a statute is required to give notice to t he attorney general,

pro vinc ial, feder al, o r bot h, as a pprop riat e.2 The attor ney ge nera l has the

right to intervene in t he proceeding and to present whatever evidence

or a rgument he or she deems necessary to defend the constitutional-

ity of the law. This may seem to depart from the adversar ial system by

allowing for non-part y participation, but, in fact, interventions by the

attorney general ref‌lect the underlying values of the adversarial system.

A constitut ional ca se implicat es the publ ic interes t and it is a b asic tenet

of the advers arial system that rights should not be affected without af-

fording t he right-holder a he arin g. The intervention of the at torney gen-

er al en sure s th at t he pub lic i nter est wil l be r epre sent ed b efore the c ourt s

when the constitutionality of a statute is attacked.

A second important development in constitutional litigation, par-

ticularly at the level of the Supreme Court of Canada, is the generous

allowance for public-interest groups to appear as intervenors.3 While

the courts were initi ally cautious in thi s area,4 the discretion to permit

public-interest groups to intervene has been frequently exercised. Once

again, this is a ref‌lection of the fact that the decision of the court on a

constitutional matter will have broad public ramif‌ications. Those who

have particular interests t hat are affected and who can assi st the court

should be heard.

2 See B.L. Straye r, The Canadian Cons titution and the Courts: The Funct ion and

Scope of Judicial Re view, 3d ed. (Toronto: Butterworth s, 1988) at 73–8 6.

3 P.R. Muldoon, Law of Intervention: St atus and Practice (Aurora, ON: Canad a Law

Book, 1989).

4 K. Swan, “Intervent ion and Amicus Curiae Stat us in Charter Litigation” in R.J.

Sharpe, ed ., Charter Litigat ion (Toronto: Butterworths , 1987).